Chapter 19 - The
International Legal Environment

The Single Convention has played a
central role in the creation of the modern prohibitionist system of
international drug control. It is a continuation and expansion of the legal
infrastructure developed between 1909 and 1953.

The work of
consolidating the existing international drug control treaties into one
instrument began in 1948, but it was 1961 before an acceptable third draft was
ready to be presented for discussion at a plenipotentiary conference.[1][50] The conference began in New York on
24 January 1961, and was attended by 73 countries, each “with an agenda based
on its own domestic priorities.”[2][51]

William B. McAllister has divided
the participating states into five distinct categories based on their drug
control stance and objectives.

··Organic states group: As producers
of the organic raw materials for most of the global drug supply, these
countries had been the traditional focus of international drug control efforts.
They were open to socio-cultural drug use, having lived with it for centuries.
While India, Turkey, Pakistan and Burma took the lead, the group also included
the coca-producing states of Indonesia and the Andean region of South America,
the opium- and cannabis-producing countries of South and Southeast Asia, and
the cannabis-producing states in the Horn of Africa. They favoured weak
controls because existing restrictions on production and export had directly
affected large segments of their domestic population and industry. They
supported national control efforts based on local conditions and were wary of
strong international control bodies under the UN. Although essentially
powerless to fight the prohibition philosophy directly, they effectively forced
a compromise by working together to dilute the treaty language with exceptions,
loopholes and deferrals. They also sought development aid to compensate for
losses caused by strict controls.

··Manufacturing states group: This
group included primarily Western industrialized nations, the key players being
the U.S., Britain, Canada, Switzerland, the Netherlands, West Germany and
Japan. Having no cultural affinity for organic drug use and being faced with
the effects that drug abuse was having on their citizens, they advocated very
stringent controls on the production of organic raw materials and on illicit
trafficking. As the principal manufacturers of synthetic psychotropics, and
backed by a determined industry lobby, they forcefully opposed undue
restrictions on medical research or the production and distribution of
manufactured drugs. They favoured strong supranational control bodies as long
as they continued to exercise de facto control over such bodies. Their strategy
was essentially to “shift as much of the regulatory burden as possible to the
raw-material-producing states while retaining as much of their own freedom as
possible.”

··Strict control group: These were
essentially non-producing and non-manufacturing states with no direct economic
stake in the drug trade. The key members were France, Sweden, Brazil and
Nationalist China. Most of the states in this group were culturally opposed to
drug use and suffered from abuse problems. They favoured restricting drug use
to medical and scientific purposes and were willing to sacrifice a degree of
national sovereignty to ensure the effectiveness of supranational control
bodies. They were forced to moderate their demands in order to secure the
widest possible agreement.

··Weak control group: This group was
led by the Soviet Union and often included its allies in Europe, Asia and
Africa. They considered drug control a purely internal issue and adamantly
opposed any intrusion on national sovereignty, such as independent inspections.
With little interest in the drug trade and minimal domestic abuse problems,
they refused to give any supranational body excessive power, especially over
internal decision-making.

··Neutral group: This was a diverse
group including most of the African countries, Central America, sub-Andean
South America, Luxembourg and the Vatican. They had no strong interest in the
issue apart from ensuring their own access to sufficient drug supplies. Some
voted with political blocs, others were willing to trade votes, and others were
truly neutral and could go either way on the control issue depending on the
persuasive power of the arguments presented. In general, they supported
compromise with a view to obtaining the broadest possible agreement.

The result of
all these competing interests was a document that epitomized compromise. The
Single Convention clearly upheld and expanded existing controls and in its
breadth was the most prohibitionist document yet concluded, though it was not
as stringent as it might have been. It was free of the costly features of the
1953 Opium Protocol, such as the provision restricting opium production to the
seven specified countries. Sharman no longer negotiated for Canada, and
Anslinger had played a minor role in the conference owing to conflicts with the
U.S. State Department. The latter was content with the Convention because U.S.
influence was assured within the UN supervisory bodies and the prohibitive
framework had been expanded to include tight controls over coca and cannabis.
Since the U.S. originated the idea of the Single Convention, walking out of the
conference would have meant losing face in the UN and given the impression of
weakness vis-à-vis the Soviet Union during a tense Cold War period.[3][52]

The principal
foundations of the previous treaties remained in place in the Single
Convention.[4][53] Parties were still required to
submit estimates of their drug requirements and statistical returns on the
production, manufacture, use, consumption, import, export, and stockpiling of
drugs.[5][54]The import certification system created by the
1925 Geneva Convention was maintained. Parties were required to license all
manufacturers, traders and distributors, and all transactions involving drugs
had to be documented.[6][55] The Single Convention built on the
trend of requiring Parties to develop increasingly punitive criminal
legislation. Subject to their constitutional limitations, Parties were to adopt
distinct criminal offences, punishable preferably by imprisonment, for each of
the following drug-related activities in contravention of the Convention:
cultivation, production, manufacture, extraction, preparation, possession,
offering, offering for sale, distribution, purchase, sale, delivery on any
terms whatsoever, brokerage, dispatch, dispatch in transit, transport,
importation and exportation.[7][56] Furthermore, the granting of
extradition was described as “desirable.”[8][57]

The
Convention assigned substances to one of four schedules based on level of
control. Schedules I and IV were the most stringent and covered primarily raw
organic materials (opium, coca, cannabis) and their derivatives, such as heroin
and cocaine. Schedules II and III were less strict and contained primarily
codeine-based synthetic drugs. At the U.S.’s insistence, cannabis was placed
under the heaviest control regime in the Convention, Schedule IV. This
regime included drugs such as heroin (the WHO considered any medical use of
heroin to be “obsolete”). The argument for placing cannabis in this category
was that it was widely abused. The WHO later found that cannabis could have
medical applications after all, but the structure was already in place and no
international action has since been taken to correct this anomaly.

The U.S. was
pleased with the Single Convention as it broadened control over cultivation of
the opium poppy, coca bush and cannabis plant, though the measures were not as
stringent as the ones Anslinger had negotiated in the 1953 Opium Protocol.[9][58] Articles 23 and 24 of the
Convention set up national opium monopolies and put very strict limitations on
international trade in opium.

Article 49 of
the Convention required Parties to completely eliminate all quasi-medical use
of opium,[10][59] opium smoking, coca leaf chewing,
and non-medical cannabis use within 25 years of the coming into force of the
Convention. All production or manufacture of these drugs was also to be
eradicated within the same period. Only Parties for which such uses were
“traditional” could take advantage of delayed implementation; for others,
prohibition was immediate. Since the implementation period ended in 1989, these
practices are today fully prohibited, and the drugs may be used only for
regulated medical and scientific purposes.

Apart from
consolidating the previous treaties and expanding control provisions, the
Single Convention also streamlined the UN’s drug-related supervisory bodies.
The PCOB and the DSB were merged in a new body, the International Narcotics
Control Board (INCB), responsible for monitoring application of the Convention
and administering the system of estimates and statistical returns submitted
annually by Parties.[11][60] The INCB was to have eleven
members, three nominated by the WHO and eight by Parties to the Convention and
UN members. The manufacturing lobby’s effectiveness in the negotiations was
evident in the knowledge requirement for WHO nominees: “medical, pharmacological or pharmaceutical experience.”[12][61] The INCB was given a limited power
of embargo: it could recommend that Parties stop international drug trade with
any Party that failed to comply with the provisions of the Convention.[13][62]

The
Convention’s emphasis on prohibition was reflected in the minimal attention
paid to drug abuse problems. Only Article 38 touched on the social (demand)
side of the drug problem by requiring Parties to “give special attention to the provision of facilities for the medical
treatment, care and rehabilitation of drug addicts.” Furthermore, it was
considered “desirable” that Parties “establish adequate facilities for the
effective treatment of drug addicts,” but only if the country had “a serious problem of drug addiction and its
economic resources [would] permit.” The inadequate recognition of
demand/harm reduction approaches, such as prevention through education, has
been one of the key criticisms of both the Single Convention and international
drug control treaties in general.[14][63]

The Single
Convention effectively consolidated several decades’ worth of assorted drug control
machinery into one key document administered by one principal body, the United
Nations.

[1][50]One of the Canadian delegates to the CND, National Health and Welfare
official Robert Curran, played the leading role in drafting a document that
would be acceptable to all countries as a starting point for negotiations
(McAllister (2000), page 205). For an analysis of this third draft, see
Leland M. Goodrich, “New Trends in Narcotics Control”, International Conciliation, No. 530, November 1960.

[3][52]Anslinger was extremely disappointed with the Single Convention because
he believed that the opium control provisions were not stringent enough (e.g.,
Article 25 still allowed any country to produce up to five tons of opium
annually, albeit subject to strict controls). He attempted to derail the
Convention by lobbying countries to ratify the 1953 Opium Protocol in hopes of
obtaining the number of ratifications needed to bring it into force. He failed,
and his influence waned after that. (Bewley-Taylor (1999), page 136‑161)

[4][53]Only the 1936 Trafficking Convention was not included in the Single
Convention and remained in force separately, because agreement could not be
reached on which of its provisions should be included in the Single Convention
(McAllister (2000), page 207-208). Article 35 of the Single Convention simply
encouraged cooperation between countries to combat illicit trafficking.

[14][63]See, for example, Report of the
International Working Group on the Single Convention on Narcotic Drugs, 1961,
Toronto, Addiction Research Foundation, 1983, page 10-11; recommendations 4, 5,
15, 19 and 20.